Judge Gorsuch — What should we do?

On Tuesday, the maniac-in-chief nominated Judge Neil Gorsuch to fill the vacancy left by the death of Antonin Scalia. This nomination creates a significant question for Senate Democrats on how to proceed.

On the merits, at least based on current public knowledge which may change, Judge Gorsuch is a typical member of the Republican conservative establishment: The son of Reagan’s EPA chief, educated at top schools, a mix of government and private practice before being appointed to the bench by George W. While it is tough to tell for sure by a decisions on a lower court — where judge’s are bound by Supreme Court precedent and are trying to read between the lines to avoid reversal — Judge Gorsuch seems very similar to Justice Scalia. It is not really possible to tell if he is on the Alito (more conservative) or Roberts (more moderate) side of Scalia. In any case, with the exception of some criminal cases, Justice Scalia was rarely the fifth vote in a progressive decision. As such, barring someone on the loony side, it is unlikely that any Trump nominee is going to substantially alter the balance on the Supreme Court from what it was before Trump died. (Of course, it would have been preferable to have a Democratic president replacing Justice Scalia, but that is not now a possibility.) And Trump is likely to nominate a candidate in his/her upper 40s or lower 50s like Judge Gorsuch, so the next opportunity for Democrats to replace any of the four conservative judges will be at least a decade or more in the future barring any unexpected deaths. Given this reality, the question is how hard to fight this nomination.

The battle over judicial nominations — like everything else — has become more a matter of political trench warfare with each cycle. In the 1960s, the nomination of Thurgood Marshall was contentious, but — at that time — the ideological lines between the two parties were blurrier and the opposition was regional (Southern senators of both parties) rather than partisan. However, with the exception of the nomination of Abe Fortas in 1968, all nominees received a vote on the merits (except for those who withdrew before any floor vote) until 2016. At the time of his retirement in 1991, Justice Marshall was one of two members of the court who received double digit “no” votes on confirmation (with 11 no votes). However, the last four nominees all received more than twenty “no” votes and only Chief Justice Roberts received less than thirty “no” votes.

Over the last two presidencies, there was a significant difference in how the two parties handled judicial appointments. When George W. Bush was president, Democrats in the Senate selectively filibustered some nominees based on their judicial philosophy. This selective filibuster led Republicans to seriously consider the “nuclear”/”constitutional” option of abolishing the filibuster for judicial nominees. (Nuclear for the risk of blowing up normal Senate procedures; constitutional because the constitution only requires a simple majority for Senate action.) In the end, enough Democrats were willing to work out an agreement with the Republicans of ending most of the filibusters in exchange for the Republicans voting against changing the rules. When the shoe was on the other foot, Republicans filibustered judicial nominees whenever the nominee would give a Democrat majority on any appellate court on the implied theory that Republicans have a God-given right to a majority on the various courts of appeals regardless of election results. There was no group of Republican Senators willing to exchange permitting a vote on these nominees (even though they did not have any ideological objection to some of them) in exchange for preserving the cloture rule, and Democrats were forced to modify the cloture rule for lesser judicial appointments (and executive branch appointments).

Additionally, when Democrats controlled the Senate in 2007-08, they allowed judicial nominations to proceed, George W. Bush was still President and had the right to make judicial appointments under the Constitution. Even for candidates who were nominated in 2008, the Senate continued to hold hearings and vote on confirmation until the Senate recessed for the election. Democrats approved ten appellate judges in 2007-08. (Democrats also approved fifty-eight district judges during this time frame. ) During the Bush presidency (when the Democrats theoretically could have filibustered every nominee from 2001-06), for the Court of Appeals, the Senate approved seventeen nominees in 2001-02, twenty nominees in 2003-04, and fifteen in 2005-06.

By contrast, the Republicans in 2015-16 put nominations into the deep freeze. They only approved two nominations to the Court of Appeals — both in circuits that already had Democratic majorities. (Additionally, the Senate only approved eighteen nominees for the district courts and three for specialty courts.) At the Court of Appeals level, the numbers are clear — sixteen judges approved in 2009-10 when the Republicans needed to hold every Republican to filibuster a nomination; fourteen judges approved in 2011-12; and twenty-three judges approved in 2013-14, most after the abolition of the filibuster.

Democrats in the Senate have to be feeling a little like Charlie Brown. We are expected to play nice and by the rules when there is a Republican in the White House to show that the system works and that government can be effective (noble goals and necessary to our agenda). However, when Democrats are in power, the Republicans feel comfortable with gumming up the works to frustrate our agenda (supporting their position that government can’t work).

Given this history, the question is what Democrats do with this nomination. The question is not whether most Democrats should vote against Judge Gorsuch. While technically qualified, he is not somebody who any Democrat should want on the Supreme Court. Other than recognizing that any replacement nominee is likely to be equally bad and that the votes are not there to force Trump to put up a more reasonable nominee, Judge Gorsuch should get fewer votes than Chief Justice Roberts did.

Instead, the issue is whether this nominee is the one to lose the filibuster over and whether now is the time to wage that fight. While there is something to be said for fighting now, my hunch is that Democrats are better off waiting on the filibuster and instead limiting this fight to the merits vote. The American public, unfortunately has a short attention span, which is one of the reasons why the grossly improper treatment of Judge Garland did not have a significant impact on the election. If, as we get closer to the 2018 or 2020 election, there is a vacancy caused by the illness or retirement of Justice Kennedy, Justice Breyer, or Justice Ginsburg and President Trump tries to nominate an Alito-clone for the vacancy, then the risk might be worth it. Under those circumstances, we might be able to get three or four Republicans to acknowledge that they want to preserve the right to filibuster for when the situation is reversed (and also to feel less than fully comfortable with the nominee).

The goal of any filibuster effort is not to go down to glorious defeat (as would almost certainly happen if we try to filibuster both Judge Gorsuch and whomever President Trump would name as a second choice). Instead, it is too either force President Trump to back down (as he might if a replacement to Justice Kennedy failed before the election in 2018 and the Democrats retook the Senate) or to have a political impact on an election (which would be more likely if the Republicans change the rules right before an election rather than today). While there is merit to the argument that we need to resist Judge Gorsuch with every tool available, the better strategy seems to be to fight on the merits rather than resort to the filibuster. Of course, if something major comes up that does “disqualify” Judge Gorsuch, things could change.